[NEW ZEALAND GAZETTE]

And whereas by "The Supreme Court Act, 1860," it is enacted that it shall be lawful for the Judges of the Supreme Court, amongst other things, from time to time to make such additional rules touching the practice, pleading, and procedure of the Court in all matters, both civil and criminal, as the Judges may deem advisable:

Now therefore, by virtue of the powers vested in us by the said Act and by "The Supreme Court Act, 1860," it is ordered by us, the Judges of the said Court, that the following General Rules shall come into and be in force on and after the fifteenth day of January, 1875.

COMMITTAL TO PRISON, UNDER THE PROVISIONS OF "THE IMPRISONMENT FOR DEBT ABOLITION ACT, 1874."

1. All applications to commit to prison under sections five, six, and seven of the said Act shall, in the first instance, be made by summons before a Judge, which shall specify the date and other particulars of the judgment or order for non-payment of which the application is made, together with the amount due, and be indorsed with the name and place of abode or office of business of the solicitor actually applying for the summons; and when such solicitor shall apply for the same as agent for any other solicitor, the name and place of abode of such other solicitor shall also be indorsed on the summons; and in case no solicitor shall be employed to apply for the summons, then it shall be indorsed with a memorandum expressing that the same has been applied for by the plaintiff or defendant in person, as the case may be, mentioning or describing also the place of abode of such plaintiff or defendant.

2. The service of the summons, wherever it may be practicable, shall be personal; but if it appear to the Judge that reasonable efforts have been made to effect personal service, and either that the summons has come to the knowledge of the debtor, or that he wilfully evades service, an order may be made as if personal service had been effected, upon such terms as to the Judge may seem fit.

3. Proof of the means of the debtor, or of other matters specified in the subsections of section six of the said Act shall, whenever practicable, be given by affidavit; but if it appear to the Judge, either before or at the hearing, that a viva voce examination, either of the debtor or of any other person, or the production of any document, is necessary or expedient, an order may be made commanding the attendance of any such person before the Judge, at a time and place to be therein mentioned, for the purpose of being examined on oath touching the matter in question, and (where the production of any document is necessary or expedient) for the production of any such document, subject to such terms and conditions as to the Judge may seem fit.

4. The order of committal (which may be in the form A in the Schedule, or to the like effect) shall, before delivery to the Sheriff, be indorsed with the particulars required by Rule 1 of these Rules. Concurrent orders may be issued for execution in different Sheriffs’ districts. The Sheriff and the officer shall be entitled to the same fees in respect thereof as are now payable upon a capias ad satisfaciendum.

5. Upon payment of the sum or sums mentioned in the order (including the Sheriff’s fees in like manner as upon a capias ad satisfaciendum), the debtor shall be entitled to a certificate in the form B in the Schedule, or to the like effect, signed by the solicitor, in the cause of the creditor, or signed by the creditor, and attested by a solicitor on his behalf, or a Justice of the Peace.

6. Orders to arrest under the fifteenth section of the said Act (which may be in the form C in the Schedule, or to the like effect) shall be made upon affidavit and ex parte; but the defendant shall be at liberty, at any time after the arrest, to apply to rescind or vary the order, or to be discharged from custody, or for such other relief as may be just; such orders shall, before delivery to the Sheriff, be indorsed with the particulars required by Rule 1 of these Rules. Concurrent orders may be issued for arrest in different Sheriff’s districts. The Sheriff and officer shall be entitled to the same fees in respect thereof as are now payable upon a capias.

7. The security to be given by the defendant may be a deposit in Court of the amount mentioned in the order, by a bond to the plaintiff by the defendant and two sufficient sureties (or, with leave of a Judge, more than two), or with the plaintiff’s consent, any other form of security. The plaintiff may, within four days after receiving particulars of the names and addresses of the proposed sureties, and the form of the proposed bond, give notice that he objects thereto, stating therein in what particulars; and in case of his so doing, the sufficiency of the security shall be determined by the Registrar, who shall have power to award the costs of such reference to either party. It shall be the plaintiff’s duty to obtain an appointment for that purpose; and unless he does so within four days after giving notice of objection, the security shall be deemed sufficient.

8. The money deposited, and the security, and all proceedings thereon, shall be subject to the order and control of the Court, or a Judge.

9. Unless otherwise ordered, the costs of and consequent on an order to arrest, shall be costs in the cause.

10. Upon payment into Court of the amount mentioned in the order, a receipt shall be given by the proper officer; and upon receiving the bond or other security, a certificate to that effect shall be given, signed or attested by the plaintiff’s solicitor; and the delivery of such receipt or certificate to the Sheriff shall entitle the defendant to be discharged out of custody.

11. The Sheriff or other officer named either in an order of committal or an order to arrest under the fifteenth section shall, within two days after the arrest, indorse on the order the true date of such arrest.

FORMS

SCHEDULE.

A.

In the Supreme Court of New Zealand
District ___

Between Plaintiff, and Defendant.

Upon hearing, &c. [Christian and surname of the debtor and of the party claiming], I do order that the said A.B. be, for default in payment of the debt hereinafter mentioned, committed to prison for the term of from the date of his arrest, including the day of such date, or until he shall pay £ being the amount of an instalment due to the said C.D. upon or a judgment or decree of the Supreme Court of New Zealand, or an order made by bearing date the day of , together with £ for costs of this order, and Sheriff’s fees for the execution thereof. And I do order that the Sheriff of ___ do take the said A.B., for the purpose aforesaid, if he shall be found within his district.

Dated, &c.

B.

I certify that A.B., now in the gaol of , at the suit of C.D., for non-payment of a debt of pounds, has satisfied the said debt, together with the costs mentioned in the said order, and Sheriff’s fees.

Dated, &c.

E.F., of &c.,
Solicitor for the said C.D., or C.D., &c.

Witness to the signature of C.D.—G.H., of &c., his Solicitor, or J.K., of &c., Justice of the Peace.

C.

In the Supreme Court of New Zealand
District ___

Between Plaintiff, and Defendant.

Upon reading the affidavits of &c., I do order that the defendant be arrested and imprisoned for months from the date of his arrest, including the day of such date, unless and until he shall sooner deposit at the Court the sum of £ by way of security, or give to the plaintiff a bond executed by him (a) and two sufficient sureties in the penalty of £ (b), or some other security satisfactory to the plaintiff that he will not go out of New Zealand without the leave of the Court; or, that any sum recovered against him in this action shall be paid, or that he shall be rendered to prison. And I do order that the Sheriff of do, within one calendar month from the date hereof, including the day of such date, take the said A.B.

Dated, &c.